In May 1996, a Critical Habitat Determination was made for the whole habitat of the Small Golden Moth Orchid, which was threatened by the subdivision of remnant Western Basalt Plains Grasslands, in Altona. The relevant local government proceeded with the subdivision without considering the Flora and Fauna Act objectives, or referring to the Department administering the Flora and Fauna Act.

Later in 1996, the Department sought to cancel the subdivision permit on the basis that the Critical Habitat Determination constituted a material change in circumstances, under section 87 of the Planning and Environment Act 1987. The Administrative Appeals Tribunal rejected the Department's application, and held that “the Critical Habitat Determination was not relevant to any provisions of the Planning and Environment Act 1987 and cannot constitute a material change in circumstances which have occurred since the grant of the permit”. The Secretary revoked the Critical Habitat Determination on 5 May 1997. A Department media release, dated 24 April 1997, stated that an independent study had failed to find the orchid and, as such, the Government did not believe it could justify the allocation of resources and funding to continue to protect the site.

This case illustrates the problems arising from the lack of incorporation of Flora and Fauna Act protection measures into Victoria's planning processes. It also highlights that the only enforceable procedures in the Flora and Fauna Act are contained in the ICO provisions.

• Summary of the Flora and Fauna Guarantee Act 1988

• Articles - Flora and Fauna Guarantee Act 1988